Williams v R (No 2) [1934] HCA 19

High Court of Australia|1934-07-01|Before: McTiernan JJ, Dixon JJ

Cam Be 1 ; "Hesse MPa fe. a A Oa dena ears si: a 7 C005 ater Scone Rett, Cons VThaller Rv Thaller Y Gee 2001) 79, Dont oon iat GooS Io, SAS 295 oy Hise oot ae ALR 382 pl

ON APPEAL FROM THE COURT OF CRIMINAL APPEAL OF NEW SOUTH WALES.

riminal Law - Appeal - Indictable offence against law of Commonwealth - Appeal H.C. or A. against sentence by Commonwealth Attorney-General - Appeal to State Court of 1934. Criminal Appeal - Jurisdiction - The Constitution (68 & 64 Vict. c. 12), secs. 51 "7 (xxxrx.), 77 (11.) - Judiciary Act 1903-1932 (No. 6 of 1903 - No. 60 of 1932), Mzunourns,

~ secs. 68," 77 - Criminal Appeal Act 1912-1924 (N.S.W.) (No. 16 of 1912 - No. May 8,9; 10 of 1924), sec. 5p.*. pene

a Bit Gavan Dufly A prisoner having been sentenced by a New South Wales Court to imprison- _C.J., Rich,

ee ir ion cgteidcaesinstitawiot the Commonwoalih,the Atiomey- ©eca" General of the Commonwealth appealed to the Court of Criminal Appeal of M°Teman 99. New South Wales against the sentence on the ground of its inadequacy, That

Court increased the sentence. On an application by the prisoner for special

leave to appeal from this decision to the High Court, Gavan Duffy C.J. and

Evatt and McTiernan JJ. were of opinion that sec. 68 of the Judiciary Act

1903-1932 did not operate upon sec. 5p of the Criminal Appeal Act 1912-1924

(N.S.W.) so as to enable the Attorney-General of the Commonwealth to appeal

to the Court of Criminal Appeal; Rich, Starke and Dixon JJ, were of opinion

that it did so operate. The Court being equally divided, leave to appeal was

ication for special leave to appeal from the Court of Criminal peal of New South Wales.

The provisions of these sections are set out at p. 536, ante.

H.C.orA. Subsequently to the decision of the High Court in Williams y.

oss The King (No. 1] (1), in the report of which the prior facts

Wrutams sufficiently appear, the Attorney-General for the Commonwealth -

Tce Iowa appealed to the Court of Criminal Appeal of New South Wales [No.

against the sentence imposed on the prisoner upon the ground that a it was inadequate. That Court increased the sentence to four years with hard labour to date from 24th February 1933.

The applicant now applied for special leave to appeal from itis) decision to the High Court on the grounds, substantially, that (a) the Commonwealth Attorney-General had no right of appeal, (b) the Court of Criminal Appeal had no jurisdiction to deal with a sentence originally imposed by a trial Judge in respect to a Commonwealth offence, (c) the conferring of a right to appeal by sec. 5p of the Criminal Appeal Act 1912-1924 (N.S.W.) on a named officer, the State Attorney-General, could not, by analogy, - be held to confer a right of appeal on some Commonwealth officer, (d) the right to appeal was conferred only upon persons convicted - of offences and not on the Crown, (e) an appeal as to the sentence was not an appeal from a trial and conviction, (f) the State Parliament could not be given authority by the Commonwealth Parliament to erect a tribunal or remove a tribunal or substitute a new tribunal to deal with a sentence imposed on a person convicted of an offence against the Commonwealth, and () the Judiciary Act 1903-1932 did not confer jurisdiction but merely dealt with procedure.

Windeyer K.C. and Gowans, for the applicant. The Judiciary Act, sec. 68, as amended by the Judiciary Act 1932 in consequence - of the decision in Seaegg v. The King (2), does nothing more than i say that the various State Courts have jurisdiction. In giving @ right of appeal to the prisoner it has not given a similar right to the - Crown. The right of the Crown to apply to another tribunal to increase the sentence is something unknown to British law apart from the - New South Wales Criminal Appeal Act 1912-1924, sec. 5p. But the Judiciary Act, even as amended, still has no reference to sentences. 7 The term " proceeding" does not include "sentence." "Trial and conviction" does not include " sentence." An application -

or review of a sentence is not an "appeal" (see Judiciary Act, c. 72, and heading thereto, and definition in sec. 2). Sec. 68 (2) f the Judiciary Act deals only with procedure and does not confer right of appeal. The Commonwealth has no power to invest State s with jurisdiction by reference to State law. Such an investing ould be against the spirit of the Constitution (The Constitution, 77). The Commonwealth Attorney-General is not the officer prosecute the appeal. He has no locus standi. " Proceedings" eans a course of legal conduct, not any one step. It is a collective

ir T. Bavin K.C. (with him Crawford), for the Crown. Sec. 68 af the Judiciary Act, as amended to overcome Seaegg v. The King ), gives a right of appeal to the Crown as well as to the convicted . If it had been intended to limit the right of appeal to an person, it would have been very simple to have used iate words to do so, but the Act is not so limited, and the tate Act confers a right of appeal not only on the convicted person it on the Crown. Sec. 68 (2) of the Judiciary Act exercises the er conferred by sec. 77 of the Constitution and confers the jurisdiction" on State Courts which they had in relation to State offences. "The like jurisdiction" does not mean part

n, the words "by a convicted person" would have achieved result which is contended for by the applicant. It is a juris- "with respect to persons who are charged," that is, wer the person of the offender. The Attorney-General for the Commonwealth was the proper person to bring the appeal. The under the Criminal Appeal Act is not given to the Attorney- for New South Wales, but to the parties to the litigation. real party in all criminal cases is the Crown and not the torney-General. This proceeding was an "appeal." Any pplication to review by any party interested is an appeal. The of appeal is given to the Federal Attorney-General by sec. 68 e Judiciary Act, as amended, by reason of the words " the like

tion." Sec. 68 enables the State Court to exercise jurisdiction (1) (1932) 48 C.L.R. 251.

to administer the Federal Crimes Act, including trial, conviction and sentence. Jurisdiction " with respect to the hearing and determina tion of appeals " is a jurisdiction to " hear appeals." The expression

"conviction or. . . any proceedings connected therewith " in see. 68 of the Judiciary Act includes " sentence." The applicant's contenti that the amendment of sec. 68, assuming that it does give a right of appeal, only gives a right of appeal in respect of something arising out of trial and conviction and does not extend to the question o sentence is not correct. If that contention were good then the words " trial and conviction " in sec. 68 (2) (c) must bear the same meaning and every person in gaol for an offence against the laws of the Commonwealth is wrongly in gaol, because there is no jurisdic in any State Court to sentence the person convicted unless it is to

impose a sentence. The imposition of the sentence is an exe1 of Federal jurisdiction. '' Conviction "' includes " sentence " (

the amendment of that section covered the same field and invest 6d the State Courts with appellate power to deal with senter

the Attorney-General. The State Courts have power when deriv from Commonwealth authority, and the mere fact that there

Federal Act invalid. 'The words of see. 68 are intended to confer the same jurisdiction as is administered by the State law.

Gowans, in reply. The problem being primarily one of const we tion of the amended section, the Court should have regard to

of the law if the section were construed in the way contended for by the respective parties, and (3) the principles of construction

y Rscoya's Case (1) was that the prisoner had no right of appeal against conviction except by way of a case stated on request made prior to conviction. The Judiciary Act, sec. 72, gave no right of appeal to the Crown. The Crown's contention involves (a) the ation of a new form of appeal, (b) the investment of a new Court with Federal jurisdiction, (c) the granting of a right of appeal to the Crown, and (d) the extension of that appeal to sentences. Jurisdiction" means "the capacity to entertain proceedings," "powers." Sec. 68 (2) merely indicates the Courts to go to for the respective proceedings described therein. The earlier part of the sub-section is descriptive of the various classes of State As to the contention that it is a jurisdiction "over the of the offender, the delimitation of the objects of the iction says nothing as to the extent of the subject matter. e "like jurisdiction " does not bring in in globo the provisions of the New South Wales Criminal Appeal Act. (Compare sec. 9, restitution of property; and sec. 7 (4), confinement to a lunatic ylum.) Sec. 68 (1) provides a new mode of procedure for appeals. Sec. 68 (2) indicates the Courts to approach. The section should be

strued as meaning that the State Courts there described shall haye the capacity to entertain in their respective spheres the same

in respect of State offences, and with the same procedure. The y who can appeal is still the prisoner, and his appeal is against conviction only (Judiciary Act, sec. 72). The term " appeals" should be confined to the type mentioned in the Commonwealth not the New South Wales Act. "Conviction" does not ide " sentence " (Archbold's Criminal Pleading, 28th ed. (1931), 241; R. v. Johnson (2); R. v. Blaby (3); R. v. Verney (4); iminal Appeal Act 1912 (N.S.W.), secs. 2, 5 (b) and (c) ). Sentence 'may be by a different Court or at a different time from conviction.

(1) (1932) 48 C.L.R. 251. (3) (1894) 2 Q.B.170.

(2) (1909) 1 K.B. 439. (4) (1909) 2 Cr. App. R. 107.

appeal is an appeal arising out of a conviction. In my opinion this f

e.g., applications for separate trials, for change of venue, &e., not sentence. The section should be construed strictly and so as to bring about uniformity of application in the various States. 7 Commonwealth Attorney-General is not given power to prosecute appeals under sec. 69 of the Judiciary Act or otherwise.

The following written judgments were delivered : - : Gavan Durry C.J. Part III. of the Act of the New South Wales Legislature entitled the Criminal Appeal Act of 1912, under heading of " Right of Appeal and Determination of Appeals," deals with two distinct subjects, (1) the grant of a right of appeal in

Sec. 5p deals with both of these subjects and is as follows: "The Attorney-General may appeal to the Court of Criminal App against any sentence pronounced by the Supreme Court or any

its discretion vary the sentence and impose such sentence as to the said Court may seem proper." Sec. 68 (2) of the Judiciary Act 1903-1932 of the Commonwealth Parliament runs as follows: " The several Courts of a State exercising jurisdiction with respect to. . . (c) the trial and conviction on indictment ; of offenders or persons charged with offences against the laws of the State, and with respect: to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth - committed within the State, or who may lawfully be tried within the State for offences committed elsewhere." It is claimed by the _ Crown that this sub-section entitles the Attorney-General for the. Commonwealth, in the case of persons tried in a State Court for offences against the laws of the Commonwealth committed within that State, to use the power of appeal conferred on the State Attorney- General by sec. 5p of the Criminal Appeal Act of 1912, because that

power and jurisdiction of the Court to hear and determine an al when an appeal has been instituted, not with the right of Crown or the accused person to institute an appeal. The

rliament might have done this had it chosen to do so, but the s used are not appropriate for that purpose. However, it is not necessary to enlarge on this subject, because the appeal granted sec. 5D is not an appeal arising out of a conviction but an appeal g out of a sentence, and the two are carefully distinguished by Criminal Appeal Act, as will be seen by reference to Part III. of the Act and more particularly to secs. 5, 5p, 5p, and 6. If that be o, the Court of Criminal Appeal in this case was endeavouring to

se a power which it possessed as a State Court, but a power with which it was not invested by sec. 68 of the Judiciary Act. The appeal should be allowed.

"Rice J. The question in this application is that which the Court did not think arose directly on the previous appeal of this prisoner in which for other reasons he succeeded (Williams v. The King . 1] (1) ). After that decision the Federal Attorney-General d against the sentence imposed at Quarter Sessions, upon the und of its inadequacy. The Court of Criminal Appeal increased sentence and the prisoner now applies for special leave to appeal gainst the order so increasing it.

_ The question turns upon the interpretation of sec. 68 of the Judiciary Act 1903-1927, as amended by Act No. 60 of 1932 which S passed in consequence of Seaegg v. The King (2). We ought ot to ignore the occasion of the amendment, which, in my opinion, a colour to its language. I find it is impossible, if the history

of the amendment is taken into account, to give effect to the conten- tion of the applicant that the words of the section give the Supreme Court power only to entertain appeals which other legislation to the parties. It seems to me that a construction can be reasonably given and ought to be given to the section by which the express grant of jurisdiction includes the grant of rights of appeal coextensive with those existing under the State law. I take the object of the provision to be to assimilate criminal procedure, including remedi by way of appeal, in State and Federal offences. The policy which the provision is based is that the administration of the criminal law should be uniform in any given State although some of the offences are created by Federal legislation and the others exist under State law. The matter has been exhaustively dealt with in the judgment of Jordan C.J. with which I agree. i

I think that the application for special leave should be refused.

Starke J. Special leave to appeal should be refused, but | granted the appeal should be dismissed. a In my opinion, the Court of Criminal Appeal in New South Wales

General of the Commonwealth against the sentence imposed on the prisoner, on the ground of its inadequacy. My reasons for

King (No. 1] (1), but I would also add, if I may, my coneu in the reasoning of my brother Dizon in the matter now before us.

wealth to appeal to the Court of Criminal Appeal against a sentence g imposed upon a prisoner convicted in New South Wales on indictmen

shall set out. (1) Sec. 51 (xxxix.) of the Constitution and sec. 77 (mL) construed in Ah Yick vy. Lehmert (2) confer ample power upon the

Parliament to invest the Courts of a State with power to entertain, to authorize the prisoner or the Crown to take, any proceedings

(2) The power or powers derived from sec. 51 (xxxrx.) and sec. 7 as ) in combination may be exercised by the Parliament without minating in its enactment between these sources of authority. provision should not be referred to sec. 77 (ut.) alone and ed as doing no more than that power may be considered to Thus, even if it were correct that sec. 77 (m1.) is not a source of power to enact new remedies, but only of power to give tate Courts a Federal authority to administer existing remedies, it would not follow that sec. 68 (2) of the Judiciary Act 1903-1932 should receive an interpretation which, with respect to appeals er trial upon indictment, restricted its operation to conferring upon the State Courts capacity to entertain appeals elsewhere given by Federal law to the prisoner or the prosecution.

(3) The provision in sec. 68 upon which the question turns was inserted by Act No. 60 of 1932 in consequence of the decision of his Court in Seaegg's Case (1). It is, therefore, certain that the mendment was intended to confer upon the Courts of Criminal al of the States a jurisdiction to hear and determine appeals in the case of Federal offences such as existed in the case of State es and to confer upon prisoners, at any rate, a right to invoke jurisdiction and to obtain analogous remedies. No construction of the provision should be adopted which defeats that object, unless language in which it is expressed is found incapable of any uction that would accomplish it.

(4) To effect the object, the enactment provides that the several urts of a State exercising jurisdiction with respect to the hearing determination of appeals arising out of the trial or conviction indictment, or out of any proceedings connected therewith, of ders or persons charged with offences against the laws of the shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. s, the method pursued is, so to speak, to take up and adopt

arising out of the trial or conviction on indictment, or out of any proceedings connected therewith, of offenders or persons charg with offences against the laws of the State." A provision conferring jurisdiction to hear and determine appeals of a specified kind may, perhaps, be taken to mean to do no more than to say which shall be the Court to entertain appeals and administer the remedies that other provisions of the law give to the party. But it is also open to an interpretation by which it gives a jurisdiction to review proceed ings not hitherto subject to appeal and so creates new remedies by conferring power to administer them. The first construction would defeat the clear object of the Legislature. The second woulda it, and ought, therefore, to be adopted.

(5) But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description " appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith." This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal

systems of criminal justice. It is, in my opinion, no objection to tht validity of such a provision that the State law adopted varies in tht different States. :

sentence to the Court of Criminal Appeal and empowers that to impose such sentence as it thinks fit, does give an appeal whi falls within the description " appeals arising out of the trial conviction on indictment or out of any proceedings connecte therewith." The word "conviction" is capable of including sentence, and a construction which confines the description to appeals from verdict and incidental proceedings, and excludes appeals from sentence, appears to me inconsistent with the eviden purpose of the Legislature of giving to prisoners, at any rate,

interpreted as relating to appeals by the prisoners only, or as sufficient to include such an innovation as an appeal from sentence y the prosecution. Conceding that such a proceeding is a marked e from the principles theretofore governing the exercise of al jurisdiction, it is a departure sanctioned by State law, and it d already been made when the amendment in the provisions of 68 (2) was introduced. General words adopting an existing set ions of State law appear to me to be of a different order

the subject matter. The general language of sec. 3 of the Jurisdiction Act 1876, which enacted that, subject to ain exceptions, an appeal lies to the House of Lords from any er of the Court of Appeal in England, has been held to give no it of appeal from an order for discharge from custody made upon he return of a writ of habeas, although expressed in terms sufficient do so, because it could not be supposed " that a section couched erms so general availed to deprive the subject of an ancient and ly recognized constitutional right" (per Lord Birkenhead, of State for Home Affairs v. O'Brien (1) ). But such a f interpretation does not appear to me to be applicable to ent dealing with the existing and known provisions of a department of the statutory law of the States and by a description adopting it for Federal purposes. Whatever, n the natural meaning of the language, falls within the description I think, be understood as within the legislative intention.

The New South Wales section gives the right of appeal against ce to the Attorney-General of the State. It gives it to him ue of his office. He is the proper officer of the Crown in right State for representing it in the courts of justice. When sec. } (2) speaks of the " like jurisdiction with respect to persons who ed with offences against the laws of the Commonwealth," es that the adoption of State law must proceed by analogy.

e remedies by way of appeal in the case of Federal offences as H- ©. or A.

I do not think that the contention is well founded that, in Wimuams e of the prima facie meaning of the general description, it should Tar Kise

The proper officer of the Crown in right of the Commonwealth for representing it in the Courts is the Federal Attorney-General, I do not feel any difficulty in deciding that, under the word *¢ like" in the expression "like jurisdiction," the functions under sec, 5p of the State Attorney-General in the case of State offenders fall to

the Federal Attorney-General in the case of offenders against the

laws of the Commonwealth. In my opinion the application for special leave should be refused, Evarr anp McTiernan JJ. Following upon the decision of this Court in Williams v. The King [No. 1] (1), the Attorney-Gene of the Commonwealth lodged in the Court of Criminal Appeal of New South Wales a notice stating: "I desire to appeal to the Court of Criminal Appeal against certain sentences pronounced by the Court of Quarter Sessions at Sydney in the State of New South Wales on the twenty-fourth day of February in the year 1933. It will be observed that the notice indicates that the appeal is brought by His Majesty's Attorney-General for the Commonwealth and is not expressed to be given on behalf of the Crown. The Attorney-General of the Commonwealth thereby assumes to exe cise the right of " appeal " which is conferred by sec. 5p of the New South .

Wales Criminal Appeal Act upon the Attorney-General of New South Wales. %

respect of each of three offences against the law of the Common: wealth, to which the applicant pleaded guilty, and the sentences were made concurrent. This sentence was increased to five years by the Court of Criminal Appeal upon an appeal instituted by the Attorney-General of New South Wales. But, on appeal to this Court by the prisoner, it was decided that the Attorney-General : New South Wales had no authority to institute the appeal and the sentence imposed by Judge White was restored.

The Attorney-General of the Commonwealth then made his application to the Court of Criminal Appeal (i.e., the Supreme Court ot New South Wales; see Stewart v. The King (2)) to increase he

tence. The Court entertained the application and ordered that

applicant be imprisoned for four years with hard labour. It been assumed that the sentence for each offence was increased four years' imprisonment with hard labour, the sentences to be urrent, although this is not expressly stated in the order of the z of Criminal Appeal. But it has to be taken that the Court Criminal Appeal desired to fix at four years the aggregate sentence to be served by the applicant instead of the period of eighteen months by the trial Judge, and that of five years fixed by the Court of al Appeal when first it assumed jurisdiction over the matter. _ The question whether the Supreme Court was right in entertaining e application of the Attorney-General of the Commonwealth and 4 the order complained of depends upon the meaning to be ascribed to sec. 68 of the Judiciary Act as it was amended on December 5th, 1932, shortly after the decision of this Court in Seaegy v. The g (1). The amendment was obviously intended to remove the les which, as Seaegg's Case revealed, lay in the way of an al to the Court of Criminal Appeal of a State by a person onvicted within that State of an offence created by Commonwealth But, as we pointed out in Williams v. The King [No. 1] (2),

"it does not follow that it was intended by Parliament to give the Crown a right of appeal against the sentence imposed, Such an intention would usually be expressed very clearly and an appeal against a sentence is, we understand, not accorded to the Crown by any State law excepting that of the State of New South Wales, although in every State of the Commonwealth a person convicted on indictment is given a right of appeal to the local Court of Criminal

Appeal." _ It is now contended that the amendment has this wider operation, ¢ question has been fully argued, and we think that, in amending . 68, the Commonwealth Parliament intended to do no more than to remedy the defect which was exposed by Seaegg's Case (1). In our opinion, Parliament did not intend to give the Crown a right to approach a Court of Criminal Appeal to question the adequacy a sentence, merely because a State statute chose to include an ogous provision in the local Criminal Appeal Act. _ Inthe case of Willingale v. Norris (3), Walton J, said: " This case a striking example of the difficulties and obscurity which arise from legislation by reference to and incorporation of other statutes."

(1) (1932) 48 C.L.R. 251, (2) Ante, p, 636, (3) (1909) 1 K.B. 57, at p. 66,

H.C.orA. We think that this observation has a special application in the

eee case before us. Under the circumstances, general words must be

Wuums looked at with considerable care, it being always remembered that

'Tun Kixe the relevant problem is to ascertain the intention of Parliament.

[No.2]. 'The judgments of the House of Lords in Secretary of State for Home

Evatt J. | Affairs v. O'Brien (1) apply an analogous principle, in interpreting very general words creating an appellate jurisdiction, by excluding from their scope judgments ordering the release of a person applying

"The argument is, of course, founded upon the very wide language of see. of the Appellate Jurisdiction Act, 1876, which is undoubtedly general ee to cover this or almost any other case. It is certainly true that in terms the - words are wide enough to give an appeal in such a matter as the present. But _ I should myself, if I approached the matter without the assistance of 'ih authority at all, decline utterly to believe that a section couched in terms s_ general availed to deprive the subject of an ancient and universally recognized - constitutional right. But happily we are in a position to approach the matter with even greater confidence, for in Cox v. Hakes (2) a very similar matter was debated and decided by this House" (3).

His Lordship then referred to Cox v. Hakes (2), and said : -

"Lord Halsbury L.C. summarized the matter in the following sentence a: "It is the right of personal freedom in this country which is in debate ; and for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed, and that the right of - personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the | final determination upon that question may only be arrived at by the last Court of Appeal' " (5).

The question at issue here is to what extent sec. 68 has carried

the criminal law of the State into the law of the Commonwealth with respect to the trial and punishment of indictable offences. he our opinion, Parliament only intended to open the Court of Criminal - Appeal to the persons against whom Seaegg's Case (6) specially said it was closed unless they went in the manner prescribed by secs. 72-16 of the Judiciary Act. The mischief sought to be remedied - was that a person convicted on indictment under Commonwealth - law had no appeal to the local Court of Criminal Appeal (i.e. the

(1) (1923) A.C. 603. (4) (1890) 15 App. Cas. 522. (2) (1890) 15 App. Cas. 506. (5) (1923) A.C., at pp. 610, 611. (3) (1923) A.C., at p. 610. (6) (1982) 48 CLR. 261.

eme Court) except in pursuance of secs. 72 and 76 of the Judiciary If Parliament intended to empower the Crown in right of the Commonwealth or the Attorney-General of the Commonwealth to ypeal against a sentence, it has adopted a most cryptic method of ion. When it desired to legislate as to the manner of prosecut- \dictable offences against Commonwealth law the Judiciary Act, 69) expressly authorize the Attorney-General of the Common- Ith to prosecute them. Yet it made no special provision for ing with " appeals " by the Crown against sentences by empower- the Attorney-General or some other person to set the appeal in tion. Why? Because, as we think, it was never contemplated Parliament, either before or after the decision in Seaegg's Case ), that the Commonwealth Crown or any of its officers should ercise or possess such an extraordinary right.

"The conclusion to which we have come is supported by the wording of the amendment to sec. 68 (1) and sec. 68 (2) of the Judiciary Act. It would be very surprising if Parliament intended to include a sentence" in the denotation of the word "conviction" or of "proceedings connected with" a trial or conviction. Indeed, an acquittal' is, in one sense, a "

"proceeding connected with" a Moreover, the position in favour of the appellant is strengthened it is remembered that we have to determine whether the general phrase " appeals arising out of any such trial or conviction or out of any proceedings connected therewith " exhibits a clear intention to embrace appeals in which the Crown itself is appellant. his language leaves us with the gravest doubt as to whether, for e first time in the history of the Commonwealth, Parliament did nt such a right. We do not think that the Commonwealth iament has manifested any intention of effecting such a drastic change in the established criminal law and practice of the Common- ealth. Lord Loreburn L.C. said in Nairn v. University of St. Andrews (2) : - "Tt would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process. It is a dangerous assumption to suppose that the Legis-

lature forsees every possible result that may ensue from the unguarded use of a single word, or that the language used in statutes is so precisely accurate

(1) (1932) 48 C.LR. 251. (2) (1909) A.C. 147, at p. 161.

that you can pick out from, various Acts this and that expression and, skilfully

piecing them together, lay a safe foundation for some remote inference. Your Lordships are aware that from early times Courts of law have been continually

obliged, in endeavouring loyally to carry out the intentions of Parliament, to observe a series of familiar precautions for interpreting statutes, so imperfect

This principle of construction is applicable here. We think its application should result in a decision adverse to the submissions of learned counsel for the Commonwealth. 4

Assuming that the words used in the amendment to sec. 68 sufficient to authorize an appeal by the Crown wherever a State Act authorizes an appeal by the Crown in analogous cases under State law, we are also of opinion that the " appeal " mentioned in sec. 5D of the New South Wales Criminal Appeal Act is not an appeal by the Crown within the amendment. Sec. 5p confers the right to approach the Court upon the " Attorney-General," that is the Attorney-General in and for New South Wales (Interpretation Act 1897, sec. 17). The person holding that office has a dual capacity. He is a political officer as well as the legal representative of the Crown in the Courts.

In our opinion, the nomination of the Attorney-General of New South Wales as the person authorized to apply to the Court under sec. 5p of the New South Wales Criminal Appeal Act, is an essential ingredient of the jurisdiction thereby created. Sec. 5p does not empower the Crown to approach the Court of Criminal Appeal to obtain an alteration of sentences imposed in its own Courts. The prerogative of mercy which is exercisable on the advice of Ministers is not affected by the Act, but sec. 5p authorizes the Court to act as a sentence-reviewing tribunal whenever its aid is invoked by the Minister of the Crown who is expressly nominated. It is conceded that, under sec. 5p, the New South Wales Court of Criminal Appeal may be asked by the Attorney-General to reduce a sentence as well as to increase it, and that the Court of Criminal Appeal, which "may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper," is thereby enabled to reduce as well as to increase a sentence. In our view it is impossible describe such a proceeding as a true "appeal." If the Crown applies to reduce a sentence there would, we imagine be no respond

to the "appeal." No doubt it is called an "appeal" in sec. 5D, itis certainly not an appeal stricto sensu, and the word " appeals " ec. 68 of the Judiciary Act should be construed only as applying to appeals stricto sensu. In the case of Whittaker v. The King (1), ox C.J. and Powers J. expressed the opinion that the true view sec. 5D was " that unlimited judicial discretion is thereby conferred on the Court of Criminal Appeal." Gavan Duffy and Starke JJ. ai lopted mueh the same interpretation, namely, that the section onfers an unfettered discretion upon the Court of Criminal Appeal 0 alter the sentence imposed by a trial J udge. These considerations show clearly that, although the services of the Court of Criminal peal may be invoked by the Attorney-General under sec. 5D of

e to whom a petition has been addressed for the exercise of pardoning power under sec. 26 of the same Act, neither method of proceeding is really an appeal by the Crown.

We therefore conclude that the Supreme Court had no jurisdiction to increase the appellant's sentence. We only concur in the order special leave to appeal should be refused because, owing to the equal division of opinion in this Court, the granting of special leave rould be immediately followed by the dismissal of the appeal. As to whether proceedings other than an appeal can be successfully uted by the applicant, we express no opinion. This application riginally framed as for a writ of habeas corpus, but, upon the g, it was treated as an application for special leave.

itor for the applicant, J. Yeldham. Solicitor for the Crown, W. H. Sharwood, Crown Solicitor for the onwealth.

At a glance

Court

Decision date

Before

Source

Judgment (105 paragraphs)